Boulder's "fighting words" ordinance is "probably not very effective" after a municipal judge's ruling late last week that the law violates the First Amendment, the city's police chief said Thursday as officials consider whether to appeal the decision.

Should Judge Thomas Reed's ruling ultimately be upheld by an appellate court, it could force Boulder officials to re-examine the law.

"Right now what we're telling our officers is that it is probably not very effective to use that ordinance until we get a final decision from what will probably be an appeal by the city," Chief Mark Beckner said, noting that he had been advised of the ruling by the City Attorney's Office.

Boulder spokesman Patrick von Keyserling said the city's attorneys have not yet decided whether they will appeal the ruling.

Judd Golden, chairman of the American Civil Liberties Union's Boulder chapter, applauded the decision by Reed, a retired Boulder County Court judge who was filling in for Municipal Judge Linda Cooke.

'Fighting words'

According to Boulder municipal code: "No person shall insult, taunt or challenge another in a manner likely to provoke a disorderly response."

"The ACLU believes the 'fighting words' ordinance in Boulder gives far too much discretion to consider the content of a person's speech rather than their conduct," Golden said. "...We find this whole concept of criminalizing words in and of themselves something that is too vague and allows for selective prosecution."

Yet Boulder County District Attorney Stan Garnett -- whose office does not prosecute such municipal cases -- noted that until Reed's "fighting words" ruling is upheld by an appellate court, the city is free to continue prosecuting cases under the ordinance.

"This ruling applies only to this particular case," Garnett said. "It doesn't mean they can't prosecute cases in the meantime. Other judges may disagree with Judge Reed, or, with different facts, Judge Reed might rule differently."

But Garnett acknowledged that if the ruling is upheld at the appellate level, Boulder likely would have to rewrite its "fighting words" ordinance.

"Anything involving First Amendment issues is something that comes under hyper scrutiny from the courts," Garnett said. "Something like a 'fighting words' statue is the kind of thing that gets looked at real closely."

'Victory for the Boulder community'

Late last week, Reed granted a motion filed by attorneys for Camille Lafont to dismiss a city "use of fighting words" ticket. Lafont's attorney and city officials confirmed the ruling this week.

Lafont, according to court documents, was cited after prosecutors claim she insulted a coworker, which then led to an altercation. The Boulder municipal code states: "No person shall insult, taunt or challenge another in a manner likely to provoke a disorderly response."

But Kevin Cheney, Lafont's attorney and a student lawyer with the University of Colorado Criminal Defense Clinic, argued the law was unconstitutional because the ordinance did not require that a person intend to cause the disorderly response.

"We are very pleased with the judge's ruling," Cheney said. "We've believed for a while that the municipal code had a lack of an intent element, but this was the first time we were able to persuade a municipal judge that the city needs to go back and add an intent element."

Cheney said "use of fighting words" is not an uncommon municipal ordinance, but because Boulder's lacks an intent component, he argued it could be used to silence political speech.

In the motion, Cheney wrote, "Under the statute, anyone who insults, taunts or challenges another person in a manner likely to provoke a disorderly response can be convicted of using fighting words. Whether they intended to provoke such a response is irrelevant... Lacking an intent element or protections for political speech, Boulder's 'use of fighting words' statute simply prohibits a substantial amount of constitutionally protected speech."

Lafont declined to discuss the case outside of an emailed statement in which she called the ruling "a victory for the Boulder community and for all Americans, because Judge Reed's decision that this ordinance is facially violative of the First Amendment sends a strong message to our legislators that the Bill of Rights, especially the First Amendment is a fundamental and basic right, which must and will be guarded jealously by the judicial branch."

It's unclear how long Boulder's "fighting words" ordinance has been on the books; von Keyserling, the city spokesman, said the Camera would have to file a request under the Colorado Open Records Act before the city would research the matter.

'Good chance' Boulder will prevail

Richard Collins, a CU law professor, said there's a good chance the ruling could be overturned should Boulder appeal.

"I would say that one sounds OK to me," Collins said of Boulder's "fighting words" ordinance. "The Boulder statue seems to me to be the kind of law that doesn't fail for vagueness. I'd say there is a good chance that the city will win the appeal."

Collins said the city has two arguments to make: The first is that Reed misread the statute and that intent is required by the wording of the statute, or that the crime is minor enough that it does not require intent.

Collins said even if the ruling is upheld, the chance Boulder simply goes without a "fighting words" ordinance is unlikely.

"Most jurisdictions have one, so it would be quite unusual if Boulder would say, 'Fighting words are fine -- cause a riot, we don't care,'" Collins said. "It's not likely, but it's possible."

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